Janata Dal (Secular) leader Prajwal Revanna’s June 2023 request for a gag order on tape recordings of alleged sexual abuse has put the spotlight on gag orders - a legal instrument intended to protect an individual's privacy and reputation but which appears to be used in this case to stifle grave allegations of sexual assault by a person in public office, according to experts BOOM spoke to.
Revanna successfully secured a court-issued gag order against 86 media outlets and three individuals from speaking about the videos which, he alleged, are “fake” and “morphed”.
Experts believe that a Bengaluru court's gag order is one of the reasons why these allegations of sexual abuse failed to come out earlier. Sex tapes and gag orders are not new in Karnataka. The state has witnessed many such scandals in the past two decades leading to resignations, investigations and legal battles.
However, it is pertinent to clarify, that Revanna's case cannot be termed a sex scandal. The huge cache of close to 3000 videos has taken the political circles by storm. The leaked videos prima facie suggest the women have been sexually abused. Though, the number of women who have been sexually abused is still unclear. Revanna has been accused of fleeing the country and is currently reported to be in Germany.
The Special Investigation Team, tasked with probing this case, on Thursday issued a Lookout Circular against the Hassan MP. "As I am not in Bangalore to attend the enquiry, I have communicated to C.I.D Bangalore through my Advocate. Truth will prevail soon," Revanna, grandson of ex-PM HD Deve Gowda, said in a post on X.
News reports suggest an uptick in court-issued gag orders against the media with Karnataka’s Bengaluru courts leading the way.
Assessing gag orders passed between 2016 and 2021, a research study concluded courts were more likely to grant an injunction to “a high-profile, privileged defendant compared to an average defendant with no connections”. The empirical study found that “in 72.7 per cent of the cases, privileged defendants are most likely to get a gag order. It also analyses how many orders curb dissent against ruling governments and finds that this occurs in 54.5 per cent of cases”.
Journalists and advocates have come out against any and all gag orders saying they go against public interest. However, some suggested that if a court were to issue takedown orders, then it shouldn't be ex parte, and the other party must be given a chance at a fair hearing.
Critics have spoken out against the misuse of gag orders in defamation cases – a tactic favoured in SLAPP suits or Strategic Litigation Against Public Participation by interested parties to prevent further discourse on a particular topic.
Gag orders are often meant to silence critics. “The idea is to have a chilling effect,” Paranjoy Guha Thakurta told BOOM. The veteran journalist has the distinction of being the only journalist to face six defamation cases filed by lawyers representing the Adani conglomerate — two of which have gag orders. “Over the years defamation suits and sedition cases have been SLAPPed (sic) on journalists by individuals and entities who are rich and powerful. The whole idea is to have a chilling effect and dissuade others from writing critically about them,” Thakurta said.
One can be charged with contempt of court for violating gag orders which attracts a fine and or jail time.
What is a gag order?
A court or government can issue gag orders to prevent the publication or release of certain information in the public domain. These are often used to curb dissent or impose prior restraints in defamation cases.
Courts impose gag orders after considering the evidence, balance of convenience and whether a discussion of the issue at hand will cause someone irreparable loss/harm.
The government can also issue gag orders under Section 144 of the Criminal Procedure Code, 1973, in the interest of public safety. One can also file a plea before the Supreme Court, but these are in exceptional cases.
In fact, post the 26/11 incident in 2008 when Mumbai was under a 60-hour siege, the Centre had proposed a slew of restrictions to prevent media outlets from live telecasting anything other than an “authorised” feed in emergency law and order situations. Indian media had opposed this move relying on self-regulation rules already in place.
Constitutional courts have mixed opinions on gag orders. However, advocate Mrinal Bharti said the Supreme Court’s Bloomberg judgment is clear on the how and when gag orders should be given.
The bench led by Chief Justice of India DY Chandrachud reiterated that courts must not mechanically apply the three-fold test – (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss or harm, to grant gag orders. This would be to the “detriment of the other party and in the case of injunctions against journalistic pieces, often to the detriment of the public.”
Gag orders blunt instruments against free speech
Experts have firmly opposed gag orders. Geeta Seshu, Editor of the Free Speech Collective said on the whole gag orders are in bad faith and cannot be justified even as advocate Vrinda Bhandari said they are “blunt instruments” and must be passed “under very narrowly tailored circumstances”.
“This was something that was accepted; but now, the courts have been changing the line they are drawing between the public’s right to know versus an individual/corporate’s right to reputation,” Seshu told BOOM.
Supreme Court in its Bloomberg judgement highlighted the problem of the affluent and the powerful securing pre-trial injunctions against the media and civil society, hindering the public’s right to information on important affairs.
“We must be cognisant of the realities of prolonged trials. The grant of an interim injunction, before the trial commences, often acts as a ‘death sentence’ to the material sought to be published, well before the allegations have been proven,” the Supreme Court noted.
Paranjoy Guha Thakurta paints a very David versus Goliath situation. “Corporates, heads of corporates, government bodies, political parties, high-profile individuals and anyone powerful and rich can engage lawyers to fight the cases. Some of these cases could also be considered frivolous,” he said. “The long arm of the law, coupled with how the wheels of justice grind very very slowly makes the process a punishment,” Thakurta added.
Therefore, to use the cliché, justice delayed is justice denied is a fact. It is the reality in India,” the veteran journalist said.
Senior advocate Indira Jaising said a “gag order” obtained by individuals in public life was one of the “obvious” threats to free speech when ex-Supreme Court judge Swatanter Kumar got an injunction that restrained the media from reporting on accusations of sexual harassment against him.
“The order makes a mockery of the rule of law and the open and fair justice system by setting different and overly restrictive standards for the coverage of such allegations against judges,” The Editors Guild said in a statement following the gag order in Kumar’s case.
The gag order in Kumar’s case is still in effect and the matter was later settled.
Do gag orders in sexual assault cases stand on a different footing?
Revanna and KE Kantesh (also embroiled in a sex tape scandal), son of now-expelled Bharatiya Janata Party leader KS Eshwarappa, join the long list of lawmakers, parliamentarians and the influential who have sought gagging orders to prevent the media from discussing and reporting on issues surrounding them.
Oftentimes victim families or survivors reach out to the media to highlight the injustice against them when going against the rich and the powerful. They are robbed of this tool when there is a gag order in place.
Senior advocate Sanjoy Ghose said a gag order must be victim-centric and not accused-centric. “A gag order prevents incidents from coming in the public. Often the victims are helpless, powerless and can hope to have a shot at justice through public awareness,” Ghose told BOOM. Ghose recalled the Nirbhaya case to point out that changes were possible only because of the public outcry from the incident.
Advocate Mrinal Bharti said, “Gag orders in corruption, bribery cases stand on a different footing from cases involving sexual abuse”. Bharti said, “In sexual assault cases, there maybe instances of false allegations. The courts must examine the evidence before them and apply their judicial mind before restraining the media from reporting. Value must be given to the evidence and more caution should be taken.”
Senior advocate Vikas Pahwa said “Gag orders should not be passed unless and until it is so imperative that it affects the constitutional right of a fair investigation and a fair trial of an accused.”
“If the media is reporting on the progress shared by probe agencies or court orders, then how can you stop that? How can one stop the media from reporting on open court proceedings? The courts can put a bar under exceptional circumstances only,” Pahwa added. “The answer depends on the people involved,” he added.
Oftentimes victims use the media as a tool to highlight the injustice against them when going against the rich and the powerful. They are robbed of this when there is a gag order in place.
Defamation laws are there for protection. “If the case involves a private person, whose privacy has been invaded, then a court may be justified in giving a limited short-term gag order till the matter is dealt with in greater detail,” Pahwa said. “Especially when the perpetrator is a public figure, the public has a right to know how a probe is proceeding, or how the courts are adjudicating the matter,” he said.
Pahwa however has drawn a line between fair reportage in an ongoing case and a media trial. “Media trial is when channels and newspapers call experts and analyse the evidence and give an opinion on the reliability of evidence, or character assassinate the witness/complainant, which is wrong,” he said.
Geeta Seshu agreed that media trials can be “a dangerous weapon”. Seshu said no doubt they take place, but the media is “expected to investigate and relentlessly report on major issues”. This may come across as a media trial, she added.
During the #MeToo movement, many anonymous survivors publicly spoke of sexual abuse, and harassment they suffered. In a research paper, advocate Vrinda Bhandari (along with Anja Kovacs) explored how the “right of a survivor to tell her story anonymously and have it circulated online collides with the entrenched power structures that emphasise the reputation of influential perpetrators while ignoring the factors that force her to remain anonymous”.
“This is the world of #MeToo, although many of the alleged perpetrators use the legal system to initiate civil or criminal actions of defamation against the survivors and/or file a civil suit for injunction to restrain the publication of the anonymous sexual harassment allegations,” Bhandari wrote.
Pushback against gag orders – a risk every media house must take
Journalists believe that there are ways to circumvent gag orders that prohibit defamatory reporting. In legal parlance, defamation is slander or libel which means falsely accusing someone publicly to ruin their reputation. There are 10 exceptions against defamation including truth and opinion.
“So as long as you don’t stray away from the truth and don’t make it defamatory, you should be able to report on issues despite the gag order,” Dhanya Rajendran, Editor-in-Chief The News Minute said. “It is a risk every media house must take,” Rajendran told BOOM.
Rajendran said the News Minute and two other media outlets are drafting a PIL against gag orders.
Many have pushed back against gag orders. Bloomberg challenged the gag order secured by Zee and won. The Supreme Court’s judgment is a cautionary tale on corporates’ misuse of SLAPP suits “to prevent the public from knowing about or participating in important affairs in the public interest”.
During the last elections, BJP leader Tejasvi Surya, before he became an MP, managed to get a gag order against 49 publications after a woman accused him of sexual harassment.
The Association for Democratic Reforms – an advocacy group, challenged this order before the Karnataka High Court and won. The high court said the media outlets are “not prevented from publishing or telecasting any news item which is not defamatory in their opinion” as it set aside the gag order. Surya, the high court said, could move the Election Commission if he felt the media reporting was defamatory.
Geeta Seshu said gag orders need to be challenged and fought back. “Courts are doing this very frequently(issuing gag orders) and it is alarming and they should not be giving relief to the accused,” she said.
“The media has a right and a responsibility to provide consistent and focused coverage on issues. If it is factual, accurate and fair, there is no reason why they shouldn’t,” Seshu added. “Look at the Tarun Tejpal and MJ Akbar case,” she said. While Tejpal sought to gag the press, Akbar filed a defamation case against journalist Priya Ramani after she wrote an article for Vogue titled “To the Harvey Weinsteins of the World”, about sexual predators at workplace and her ordeal without naming anyone.
Seshu also referred to the 2010 media coverage in the Arushi Talwar murder case which prompted the Supreme Court to slam “sensationalist” media reports and observe them as lacking in “sensitivity, taste and decorum”.
The top court ultimately restrained the print and electronic media from reporting anything that might affect prejudice the probe, or affect the reputation the victim, her parents who were accused of the murder (and subsequently acquitted) and any other person connected with the case.
“Nobody is gagging the Press, but there is no harm in gagging irresponsible Press,” the Supreme Court orally observed during the hearing. “This is sickening… to write about a 14-year-old child... Her reputation is tarnished,” Justice Altamas Kabir had noted, adding, “We are for fair reporting. But this is sensationalism and simply character assassination. Can it be justified?”
Even Thakurta broke the gag order and spoke to The Telegraph, Al Jazeera and several other media organisations about his reporting on the Adani Group of companies. He had stayed mum for two years. “I already have six cases against me, what is one more,” he remarked when asked if was he worried about the consequences of his reporting or attracting a contempt of court charge.
However, Seshu said there is a way out. “Journalists have to maintain decorum to protect the case from being sensational, or resorting to some salacious interest,” she said. “There can be regulations on reportage, but a gag order is not the answer,” Seshu said.
“Because this is what gag orders so. It becomes a one size fits all and a blanket order kind of situation. Media probe and its responsibility as a watchdog is affected,” Seshu said.